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THE WHAT AND WHY OF BAIL?

Bail is not defined under the CrPC however, we always believe in “innocent until proven guilty” but despite this basic concept of the criminal justice system the accused is arrested and denied his right to personal liberty.

Long trial and delayed justice mar the concept where the accused is kept languishing in jails. Hence, at the same time, there is a larger threat to the society to protect the commission of a crime so a person accused of an offense cannot be made to roam around freely endangering the society at large.

These two conflicting positions have been somewhat balanced out in the Criminal procedure Code through the provisions of Bail. The provision has been enacted with a view to restoring the liberty of the arrested person w/o jeopardizing the objectives of the state.

WHEN RELEASED ON BAIL IS MANDATORY?

The provision related to bail and bonds has been clearly mentioned in sections 436 to 450 of CrPC. This provision envisaged in the code gives the brief regarding the provisions of the bail.

1. Section 436 of CrPC
2. Where investigations have not completed within the prescribed time.
3. Where no reasonable grounds exist for believing the accused guilty of non-bailable offense: Section 437(2)
4. Where trial before Magistrate is not concluded within 60 days (Section 437 (6) )
5. Where no reasonable grounds exist for believing the accused guilty after the conclusion of trial but before judgment S.437(7)

   SECTION 436

Any person accused of committing a bailable offense shall be released on Bail. Conditions for Section 436 to operate are as follows:

1. Bailable offense committed
2. Detained or arrested without warrant or appears or is brought before the court.
3. Prepared to give Bail either while in custody or anytime during the proceeding before the court.

The police officer or Court having his custody is required to release him on bail. The police officer or court may even release him on a bond without sureties, instead of Bail.

WHO MAY GRANT BAIL U/S 436?

Police officer

Court: It’s the Court before which the accused is brought or appears. The court for the purposes of the section means a court that is competent to take cognizance of the case.

• The section is imperative and the Police officer/ Magistrate is bound to release the person on bail. If there is no substantial risk of the accused fleeing the course of justice, there is no reason why he should be imprisoned during the course of the trial. When the bail is refused it is a restriction on the personal liberty of the individual guaranteed under Article 21 of the constitution and thus, such refusal must be rare.
• The Section to avoid unnecessary burden on the indigent provides for the discharge of the accused on him executing a personal bond without sureties.
• Further, if a person is unable to give bail within a week of arrest it shall form sufficient ground for the court to presume that he is an indigent person.

SECTION 167 OF CrPC

Section 167 states where investigation does not completed within the prescribed time.

Person to be produced before the Magistrate within 24 hours of arrest. If further detention is required it is to be done on the orders of the Magistrate u/s 167 (REMAND). U/S 167 max. period of detention: –

• 90 days where investigation relating to an offense punishable with death or life or not less than 10 years.
• 60 days for other offenses.
• On the expiry of the period accused is to be released if prepared to and does furnish bail. however, detention beyond this period is not illegal and the magistrate can extend the period of detention. But if furnishes bail during that period needs to be released on bail.

The claim for bail is to be made before the charge sheet. If no bail prior to the submission of the charge sheet, then the accused could seek bail u/s 437.

Once bail is granted u/s 167(2) provisions of Chapter 33 relating to Bail become operational.

No case for grant of bail will be made out under section 167(2) of the Code if the charge sheet is filed before the expiry of 90 days or 60 days, as the case may be, from the date of the first remand. The right of default bail is lost, once the charge sheet is filed. Default bail is a sort of a rap on the knuckles of the police for not completing the investigation and filing the final report within 90 or 60 days of the first remand of the accused.

Once bail is granted u/s 167(2) provisions of Chapter 33 relating to Bail become operational.

SECTION 437(2): Where no reasonable grounds exist for believing the accused guilty of a non-bailable offense.

In such a case reason to be recorded in writing by the officer or the Court Section 437(4).

Where trial before Magistrate is not concluded within 60 days (Section 437 (6) ).

Where no reasonable grounds exist for believing the accused guilty after the conclusion of trial but before judgment Section 437(7).

CONCLUSION

To conclude what has been stated so far, there are laws for everyone to prove his/her innocence hence, bail is an important check and balance to ensure that no innocent person is punished until proven guilty but it has different aspects for this because sometimes the complicated system of bail fails to appreciate it. But it is important to remember that we live in a democratic country where every person has an equal right and he/she should be given a chance to prove his/her innocence because then only it will consider a fair legal system.

Bibliography: –

1. The Code of Criminal Procedure, 1973.

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